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Westlaw Delivery Summary Report for BARDEN,JOHN

Date/Time of Request: Friday, May 20, 2011 14:06 CentralClient Identifier: JB

Database: ME-CS

Citation Text: 83 A. 673

Lines: 897

Documents: 1

Images: 0

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Supreme Judicial Court of Maine.SAWYER

v.

GILMORE, State Treasurer.

June 6, 1912.

Report from Supreme Judicial Court, Penob-

scot County, in Equity.

Bill by Herbert J. Sawyer against Pascal P.

Gilmore, State Treasurer. On report. Bill dismissed.

West Headnotes

Constitutional Law 92 2330

92 Constitutional Law

92XX Separation of Powers

92XX(A) In General

92k2330 k. In General. Most Cited Cases

(Formerly 92k26)

The executive and the judicial departments of

the state can exercise only the powers conferred by

the Constitution, and such as are necessarily im-

plied therefrom, while the powers of the Legis-

lature, broadly speaking, are absolute, except as

limited by the Constitution.



92VI Enforcement of Constitutional Provisions

92VI(C) Determination of Constitutional

Questions

92VI(C)3 Presumptions and Construction

as to Constitutionality

92k996 k. Clearly, Positively, or Un-

mistakably Unconstitutional. Most Cited Cases

(Formerly 92k48, 92k48(1), 92k48)

A statute will not be held unconstitutional, un-

less its violation of the fundamental law is clear and

palpable.


92 Constitutional Law92XX Separation of Powers

92XX(B) Legislative Powers and Functions

92XX(B)1 In General

92k2340 k. Nature and Scope in Gen-

eral. Most Cited Cases

(Formerly 92k50)




92XX(C) Judicial Powers and Functions92XX(C)1 In General

92k2450 k. Nature and Scope in Gen-

eral. Most Cited Cases

(Formerly 92k50)




92XX(D) Executive Powers and Functions

92k2620 k. Nature and Scope in General.

Most Cited Cases(Formerly 92k50)

Executive and judicial departments of state ex-

ercise only powers conferred by Constitution, and

such as are necessarily implied, while powers of

Legislature are absolute, except as limited by Con-

stitution.




92XX(C) Judicial Powers and Functions92XX(C)2 Encroachment on Legislature

92k2499 Particular Issues and Applica-

tions

92k2525 k. Taxation and Public

Finance. Most Cited Cases

(Formerly 92k70.1(12), 92k70(1))

83 A. 673 Page 1

109 Me. 169, 83 A. 673, 21 Am.Ann.Cas. 28

(Cite as: 109 Me. 169, 83 A. 673)

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
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The particular method of distributing the pro-

ceeds of taxation rests in the wise discretion of the

Legislature.



92XXV Class Legislation; Discrimination and

Classification in General

92k2977 k. Public Improvements. Most Cited

Cases

(Formerly 92k208(1))

Taxation 371 2121

371 Taxation

371III Property Taxes371III(B) Laws and Regulation

371III(B)4 Constitutional Regulation and

Restrictions Concerning Equality and Uniformity

371k2121 k. Constitutional Require-

ments and Operation Thereof. Most Cited Cases


Pub.Laws 1909, c. 177, authorizing taxation for

school purposes, held not violative of Const. art. 9,

8.







Taxation 371 2121

371 Taxation

371III Property Taxes

371III(B) Laws and Regulation

371III(B)4 Constitutional Regulation andRestrictions Concerning Equality and Uniformity

371k2121 k. Constitutional Require-

ments and Operation Thereof. Most Cited Cases


That taxation may be equal within the require-

ment of Const. art. 9, 8, it is not necessary that

the benefits arising therefrom should be enjoyed by

all the people in equal degree, nor that each person

should participate in each particular benefit.







Taxation 371 2132

371 Taxation


371III(B) Laws and Regulation371III(B)4 Constitutional Regulation and


371k2132 k. Payment, Enforcement,

and Disposition of Taxes Collected. Most Cited

Cases


Inequality of tax assessment vitiates it, but in-

equality of distribution of the proceeds does not, if

the purpose be the public welfare.



92XXVI Equal Protection

92XXVI(A) In General

92XXVI(A)5 Scope of Doctrine in Gener-

al

92k3038 Discrimination and Classific-

ation

92k3041 k. Similarly Situated Per-

sons; Like Circumstances. Most Cited Cases

(Formerly 92k209)

The fourteenth amendment of the federal Con-

stitution requires equal protection and security to

all under like circumstances in the enjoyment of

their personal and civil rights.



83 A. 673 Page 2

109 Me. 169, 83 A. 673, 21 Am.Ann.Cas. 28

(Cite as: 109 Me. 169, 83 A. 673)

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8/6/2019 83_A__673_5-20-11_1406

4/16

92XXVI Equal Protection

92XXVI(E) Particular Issues and Applica-

tions

92XXVI(E)8 Education

92k3611 Elementary and Secondary

Education

92k3614 k. School Funding and

Financing; Taxation. Most Cited Cases

(Formerly 92k242.2(2.1), 92k229(1))

Taxation 371 2135

371 Taxation



371III(B)4 Constitutional Regulation and


371k2134 Classification of Subjects,

and Uniformity as to Subjects of Same Class

371k2135 k. In General. Most Cited

Cases

(Formerly 92k242.2(2.1))

Pub.Laws 1909, c. 177, authorizing general

state taxation for common school purposes, held

not to violate Const.U.S. Amend. 14, which

provides that no state shall deny any person within

its jurisdiction the equal protection of the laws.

Municipal Corporations 268 64

268 Municipal Corporations

268III Legislative Control of Municipal Acts,

Rights, and Liabilities

268k64 k. Nature and Scope of Legislative

Power in General. Most Cited Cases

Towns 381 16

381 Towns

381II Government and Officers

381k16 k. Legislative Control of Acts,

Rights, and Liabilities. Most Cited Cases

Towns are mere agencies of the state, and their

powers and duties are within the Legislature's con-

trol.

Schools 345 99

345 Schools

345II Public Schools

345II(G) Fiscal Matters

345k98 School Taxes

345k99 k. Power and Duty to Tax.

Most Cited Cases

Pub. Laws 1909, c. 177, authorizing taxation

for common school purposes, held not invalid on

the theory that the town can relieve itself from local

taxation for purposes other than school purposes.

Schools 345 99

345 Schools



345k98 School Taxes


Most Cited Cases

Pub.Laws 1909, c. 177, authorizing taxation for

common school purposes, held not violative of

Const. art. 8, because section 6 of the act permits

sums received from the state under distribution to

be raised by the municipalities within Rev.St. c. 15,

13, as amended by Pub.Laws 1909, c. 128.

Schools 345 99

345 Schools



345k98 School Taxes


Most Cited Cases

Const. art. 8, which provides that Legislature

shall require the several towns to make suitable

provision at their own expense for the support of

public schools, is mandatory, and not prohibitory;

there being no remedy on the Legislature failing or

refusing to legislate.

Schools 345 99

345 Schools



83 A. 673 Page 3

109 Me. 169, 83 A. 673, 21 Am.Ann.Cas. 28

(Cite as: 109 Me. 169, 83 A. 673)

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345k98 School Taxes


Most Cited Cases

The word suitable, within Const. art. 8,

which requires the Legislature to require towns to

make suitable provision for common schools at

their own expense is an elastic term, dependent

upon the necessities of changing times, and subject

to the Legislature's discretion to determine what is

suitable.

Schools 345 99

345 Schools



345k98 School Taxes


Most Cited Cases

Pub.Laws 1909, c. 177, authorizing general

state taxation for common school purposes, is not

unconstitutional, because under the practical work-

ings of the act the towns of the state are not re-

quired to raise a uniform amount per capita.

Taxation 371 2100

371 Taxation



371III(B)3 Constitutional Requirements

and Restrictions

371k2100 k. In General. Most Cited

Cases

(Formerly 371k37)

Statute authorizing general state taxation for

common school purposes held not unconstitutional.

Pub.Laws 1909, c. 177.

*674 Bill in equity brought by Herbert J. Saw-

yer of Mattaniscontis, an unorganized township in

the county of Penobscot, to enjoin the defendant

and his successors in office from collecting a tax

assessed under the provisions of chapter 177 of the

Public Laws of 1909, entitled An act relating to

the common school fund and the means of provid-

ing for and distributing the same. Bill dated July

27, 1910. An answer was filed by the defendant. By

agreement the case was reported to the law court

for determination.

Argued before WHITEHOUSE, C. J., and SPEAR,

CORNISH, KING, BIRD, HALEY, and HANSON,

JJ.Louis C. Stearns, Taber D. Bailey, and Louis C.

Stearns, Jr., all of Bangor, for plaintiff. Warren C.

Philbrook, Atty. Gen., and William R. Pattengall,

Atty. Gen., for defendant.

CORNISH, J.

This bill in equity is brought to enjoin the

Treasurer of State and his successors in office from

collecting a tax assessed under the provisions of

chapter 177 of the Public Laws of 1909, entitled

An act relating to the common school fund and the

means of providing for and distributing the same.

The plaintiff is a resident of Mattaniscontis, an un-

organized township in the county of Penobscot. He

is the owner of 12 lots of land in the township, and

has one child of school age. The entire state tax as-

sessed against these lots at the rate of 5 mills

amounted to $21.51, three-tenths of which, or

$6.45, was created by the act in question. The

amount involved in this suit is not large, but theconsequences are of vast importance.

The case comes up on report, and by stipulation

the only question raised and to be considered is the

constitutionality of the chapter above referred to

under the state and federal Constitutions.

Chapter 177 of the Public Laws of 1909, the

statute in question, reads as follows.

Section 1. A tax of one and a half mills on a

dollar shall annually be assessed upon all of the

property in the state according to the valuation

thereof and shall be known as the tax for the sup-

port of common schools.

Sec. 2. This tax shall be assessed and collec-

ted in the same manner as other state taxes and

shall be paid into the state treasury and designated

83 A. 673 Page 4

109 Me. 169, 83 A. 673, 21 Am.Ann.Cas. 28

(Cite as: 109 Me. 169, 83 A. 673)

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as the common school fund.

Sec. 3. One-third of this fund shall be distrib-

uted by the Treasurer of State on the first day of

January, annually, to the several cities, towns and

plantations according to the number of scholars

therein, as the same shall appear from the official

returns made to the state superintendent of public

schools for the preceding year, and the remaining

two-thirds of said fund shall be distributed by the

Treasurer of State on the first day of January, annu-

ally, to the several cities, towns and plantations, ac-

cording to the valuation thereof as the same shall be

fixed by the state assessors for the preceding year.

Sec. 4. All of the said fund not distributed or

expended during the financial year shall at its close

be added to the permanent school fund.

Sec. 5. All moneys provided by towns or ap-

portioned by the state for the support of common

schools shall be expended for the maintenance of

common schools established and controlled by the

towns by which said moneys are provided, or to

which said moneys are apportioned.

Sec. 6. Sums received by any city, town or

plantation from the distribution provided by section

three shall be deemed to be raised by such city,

town or plantation within the meaning of Revised

Statutes, chapter fifteen, section thirteen, as

amended.

Sec. 7. The passage of this act shall in no wise

affect the provisions of sections one hundred and

twenty-four, one hundred and twenty-five, one hun-

dred and twenty-six and one hundred and twenty-

seven of chapter fifteen of the Revised Statutes, or

of section two of chapter one hundred and eleven of

the Public Laws of 1907.

It is contended that this statute violates section

8 of article 9 of the state Constitution, which reads:

All taxes upon real or personal estate assessed by

authority of this state shall be apportioned and as-

sessed equally according to the just value thereof;

article 8 providing that the Legislature are author-

ized and it shall be their duty to require the several

towns to make suitable provision, at their own ex-

pense, for the support and maintenance of public

schools, and the fourteenth amendment of the fed-

eral Constitution, declaring that no state shall deny

to any person within its jurisdiction the equal pro-

tection of the laws.

Before entering upon a consideration of *675

the constitutional questions thus raised, it may be

useful to take a brief survey of the laws in force at

the time this statute was enacted pertaining to the

raising and distribution of money for the common

schools of the state.

These schools have received their support from

two distinct sources, state aid and direct municipal

taxation, the former passing through the state treas-

ury to the treasuries of the several municipalities

and the latter through the municipal treasuries

alone.

State Aid.

The state aid, since 1872, when the first so-

called mill tax was created, has itself been derived

from three sources.

First. From the income of the Permanent

School Fund, so called, a fund created by the sale

of wild lands appropriated by the state in former

years for the support of schools, amounting at the

present time to about one half a million dollars, and

on this principal the state pays interest at the rate of

6 per cent. R. S. c. 15, 122.

Second. From one-half of the state tax on sav-

ings banks and trust companies. R. S. c. 15, 122.

Third. From the school mill tax so called, de-

rived from assessing all the property in the state

situated in cities, towns, plantations, and unorgan-

ized townships, at the rate of one mill on the dollar

from 1872 to 1907, and since 1907 at the rate of 1

1/2 mills. R. S. c. 15, 124; Public Laws 1907, c.

111.

83 A. 673 Page 5

109 Me. 169, 83 A. 673, 21 Am.Ann.Cas. 28

(Cite as: 109 Me. 169, 83 A. 673)


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This school mill fund is distributed by the

Treasurer of State to the several cities, towns, and

plantations, according to the number of scholars

therein.

The Legislature of 1909 created by the act in

question (chapter 177) an additional revenue by im-

posing a further state tax of 1 1/2 mills upon all of

the property in the several cities, towns, planta-

tions, and unorganized townships of the state at the

rate of 1 1/2 mills on the dollar, this fund to be

known as the Common School Fund, and to be

distributed by the State Treasurer to the several cit-

ies, towns, and plantations of the state, one-third

according to the number of scholars therein and

two-thirds according to the valuation. The supportof common schools on the part of the state under

the present plan is therefore derived from (1) the

permanent school fund; (2) the savings bank and

trust company tax; (3) the school and mill fund; and

(4) the common school fund. It is this last which is

under consideration here.

Municipal Aid.

The several cities, towns, and plantations have,

in addition, been compelled by the Legislature to

assist in the maintenance of common schools by

municipal taxation. The amount thus required hasvaried from time to time. In 1821 it was fixed at 40

cents per capita, inclusive of the income of any in-

corporated school fund (Statute 1821, c. 117, 1);

changed in 1832 to 40 cents, exclusive of state in-

come or of any state aid (Public Laws 1832, c. 39);

60 cents, exclusive, as in R. S. 1857, c. 11, 5;

changed to $1, exclusive, by Public Laws 1868, c.

196; 80 cents exclusive of such income, state aid,

and of the mill tax from 1872 to 1907 (Public Laws

1872, c. 56, R. S. 1903, c. 15, 13); 55 cents, ex-

clusive from 1907 to 1909 Public Laws 1907, c.

111); and since January 1, 1910, 80 cents

exclusive of the income of any corporate school

fund, or of any grant from the revenue or fund from

the state or of any voluntary donation, devise or be-

quest (Public Laws 1909, c. 128), but inclusive of

any sums received from the distribution of the com-

mon school fund created by the act now under con-

sideration (Public Laws 1909, c. 177, 6).

It is perhaps unnecessary to add that it has al-

ways been and still is within the power of the muni-

cipalities to voluntarily raise by taxation such

amounts in addition to the required per capita tax as

they may deem necessary and proper. Cushing v.

Newburyport, 10 Metc. (Mass.) 508; Piper v.

Moulton, 72 Me. 155-166.

Let us now take up the constitutional question

involved in this case, and consider what the

plaintiff deems the vulnerable points in the act in

question. We will discuss them seriatim.

It is not contended that the manner in which

this tax is assessed violates any constitutional pro-

vision. Section 8 of article 9 of the state Constitu-

tion requires that all taxes upon real or personal

estate, assessed by authority of this state shall be

apportioned and assessed equally according to the

just value thereof. The act under consideration

meets this requirement fully. The assessment is laid

upon all the property both real and personal

throughout the state, in all the cities, towns, planta-

tions, and unorganized townships. No property es-

capes. No locality escapes. All the property is as-sessed by the state board of assessors at its just

valuation and a uniform rate of taxation, 1 1/2

mills, is laid upon all classes of property. No such

objection can be raised to the mode of assessment

here as in the statute considered in the Opinion of

Justices, 97 Me. 595, 55 Atl. 827, where a discrim-

ination was made between land in incorporated and

in unincorporated places. Here there is no discrim-

ination. The apportionment and assessment are

equal throughout the state.

Objections, however, are raised to the mannerof distribution, and the plaintiff contends that in

considering the constitutionality of a statute creat-

ing revenue by taxation the method of distribution

as well as of assessment should be scrutinized.

1. The first objection is that this act imposes

83 A. 673 Page 6

109 Me. 169, 83 A. 673, 21 Am.Ann.Cas. 28

(Cite as: 109 Me. 169, 83 A. 673)

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*676 an unequal burden of taxation upon the unor-

ganized townships of the state, because, while the

fund is created by the taxation of all the property in

such townships as well as upon the property in the

cities, towns, and plantations, no provision is made

for the distribution of any part thereof to such

townships, but it is all apportioned among the cit-

ies, towns, and plantations. The townships are omit-

ted. In other words, while four subdivisions of the

state are made to contribute to the fund, only three

are permitted to share in the financial benefits.

This objection, however, is without legal

foundation. The Legislature has the right under the

Constitution to impose an equal rate of taxation

upon all the property in the state, including theproperty in unorganized townships, for the purpose

of distributing the proceeds thereof among the cit-

ies, towns, and plantations for common school pur-

poses, and the mere fact that the tax is assessed

upon the property in four municipal subdivisions

and distributed among three is not in itself fatal.

Doubt arose as to the constitutionality of the

original school mill act (chapter 43, of the Public

Laws of 1872), which was the first in this state to

impose a general tax upon all the property in the

state and devote the proceeds to the maintenance ofthe common schools. Accordingly in 1876, the

House of Representatives asked the justices of the

Supreme Judicial Court whether the Legislature has

the power under the Constitution of the state to as-

sess a general tax upon the property of the entire

state for the purposes of distribution for the support

of the common schools. The justices answered un-

animously in the affirmative. Opinions of the

Justices, 68 Me. 582.

Ample ground for the exercise of this legislat-

ive power was found in the constitutional provisionthat a general diffusion of the advantages of edu-

cation are essential to the preservation of the rights

and liberties of the people (article 8), and in the

full power conferred upon the Legislature to

make and establish all reasonable laws and regula-

tions for the defense and benefit of the people of

this state (article 4, pt. 3, 1). The existence of the

power being granted, of the necessity of its exercise

the Legislature must be and is the sole judge. The

broad ground upon which the validity of the act was

upheld is stated in these words: The tax in ques-

tion is like that for the support of government. It is

for the benefit of the whole people. All the property

in the state is assessed according to its valuation.

All contribute thereto in proportion to their means.

It is a tax for a public purpose, not one by which

one individual is taxed for the special and peculiar

benefit of another. All enjoy the beneficial results

of education, and the better order and government

arising therefrom, irrespective of the amounts re-

spectively contributed by each to these most im-

portant objects. While it is true that the opinionsof justices given at the request of either branch of

the Legislature or of the executive do not have the

binding force of decisions in adjudicated cases (95

Me. 566, 573, 51 Atl. 224), yet they carry weight in

proportion to the reasons upon which they are

based.

The justices in considering the mill tax did not

in detail discuss the discrimination against unorgan-

ized townships, which share in the contribution but

not in the distribution, but that question was neces-

sarily involved in their opinion, because in this re-spect the Acts of 1872 and of 1909 are identical,

and the language quoted above meets and answers

it fully. The fundamental question is this: Is the

purpose for which the tax is assessed a public pur-

pose, not whether any portion of it may find its way

back again to the pocket of the taxpayer or to the

direct advantage of himself or family. Were the lat-

ter the test, the childless man would be exempt

from the support of schools and the sane and well

from the support of hospitals. In order that taxation

may be equal and uniform in the constitutional

sense, it is not necessary that the benefits arising

therefrom should be enjoyed by all the people in

equal degree, nor that each one of the people should

participate in each particular benefit. Laws must be

general in their character, and the benefits must af-

fect different people differently. This is due to dif-

83 A. 673 Page 7

109 Me. 169, 83 A. 673, 21 Am.Ann.Cas. 28

(Cite as: 109 Me. 169, 83 A. 673)

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ference in situation. As was said in the State Rail-

road Tax Cases, 92 U. S. 575-612 (23 L. Ed. 663):

Perfect equality and perfect uniformity of taxation

as regards individuals or corporations, or the differ-

ent classes of property subject to taxation is a

dream unrealized. But the law recognizes a broad-

er and more unselfish test than this. In a Republic

like ours each must contribute for the common

good, and the benefits are received not directly in

dollars and cents, but indirectly in a wider diffusion

of knowledge, in better homes, saner laws, more ef-

ficient administration of justice, higher social order,

and deeper civic righteousness.

This is the legal and constitutional answer to

the plaintiff's claim of inequality, but in this con-nection it should not be overlooked that the Legis-

lature has, in fact, made wise and generous provi-

sion for the education of children in the unorgan-

ized townships, more generous in fact than in the

case of children in incorporated places. The very

fact that these townships have no municipal organ-

ization precludes a distribution to them of any share

in the school fund by the same method that distribu-

tion is made to cities, towns, and plantations. The

municipal machinery therefor is lacking. Accord-

ingly by R. S. c. 15, 94, as amended by chapter 87

of the Laws of 1909, the state either maintains aschool for 26 weeks in the year in every unorgan-

ized township in which there is more than one child

of school age, or provides for *677 sending the

children to schools in adjoining towns or planta-

tions, on condition that the inhabitants of the town-

ship pay to the state, a sum equal to 40 cents for

each inhabitant. The expense of educating the chil-

dren in such townships in excess of the per capita

tax of 40 cents and of the interest on the reserve

school fund in the township is all borne by the state

by appropriations from the annual school funds of

the state, which include the mill tax fund and the

common school fund.

And these appropriations from the annual

school funds for use in the township schools have

increased as the state funds for school purposes

have increased. In 1899 it was $1,500 (Public Laws

1899, c. 89), increased to $2,500 by Public Laws

1901, c. 206, to $5,000 by Public Laws 1903, c.

128, to $7,000 by Public Laws 1905, c. 45, to

$15,000 by Public Laws 1909, c. 87, and to $18,000

by Public Laws 1911, c. 29.

So that, when the Legislature of 1909 by the

enactment of chapter 177 practically increased the

state tax for school purposes from 1 1/2 mills to 3

mills, and doubled the rate on these unorganized

townships, it, at the same session by chapter 87, in-

creased the appropriation for the township schools

from $7,000 to $15,000, a little more than the same

ratio of increase would require. It might be added

that each of the three school children in the town-ship of Mattamiscontis in the year ending April 1,

1911, received an expenditure of $53.58, and each

scholar on the average in all the unorganized town-

ships of the state received $19 for school purposes

while the amount per scholar throughout the state

averaged only $2.52. The 948 children of school

age in the unorganized townships received on the

average about eight terms as much as the 214,960

children in the cities, towns, and plantations.

In this view of the situation, it is evident that

the passage of the common school fund act of 1909in fact works neither inequality nor injustice so far

as the education of children in the unorganized

townships is concerned, and, when the Legislature

doubled the amount of the school tax which the

land of the plaintiff was to pay, it at the same time

more than doubled the proportional part of the state

fund which could be used for the education of his

children. So much for the first contention as to in-

equality between taxes paid and benefits received.

2. But the plaintiff further attacks the method

of distribution as unconstitutional because it ismade, not according to the number of scholars, as is

the school mill fund, but one-third according to the

number of scholars and two-thirds according to

valuation, thus benefiting the cities, and richer

towns more than the poorer.

83 A. 673 Page 8

109 Me. 169, 83 A. 673, 21 Am.Ann.Cas. 28

(Cite as: 109 Me. 169, 83 A. 673)

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But that result is not the test of constitutionality. In-

equality of assessment is necessarily fatal, inequal-

ity of distribution is not, provided the purpose be

the public welfare. The method of distributing the

proceeds of such a tax rests in the wise discretion

and sound judgment of the Legislature. If this dis-

cretion is unwisely exercised, the remedy is with

the people, and not with the court. Such distribution

might be according to population, or according to

the number of scholars of school age, or according

to school attendance, or according to valuation, or

partly on one basis and partly on another. The Con-

stitution prescribes no regulation in regard to this

matter, and it is not for the court to say that one

method should be adopted in preference to another.

We are not to substitute our judgment for that of aco-ordinate branch of the government working

within its constitutional limits. The distribution of

the school mill fund of 1872 has resulted in in-

equality. That distribution has been, and continues

to be, based on the number of scholars, thereby be-

nefiting the poorer towns more than the richer, be-

cause they receive more than they pay, and in the

opinion of the justices before cited that method is

deemed constitutional. The act under consideration

apportions the newly created common school fund

one-third according to the number of scholars and

two-thirds according to the valuation as fixed by

the state assessors, thereby benefiting the richer

towns more than the poorer, producing inequality in

the other direction, but we are unable to see why

this method is not equally constitutional with the

other. Both taxes are assessed for the same admit-

tedly public purpose, both promote the common

welfare, and the fact that the Legislature has seen

fit to distribute the two on different bases is not

fatal to the validity of either. It may be that the two

methods taken together produce a more equal distri-

bution than either operating alone. In any event, theLegislature has adopted both methods, and both

must stand or fall together.

3. Nor is there any force in the contention that

because the town receives back from the state prac-

tically two-thirds of what it has paid to the state,

therefore it can relieve itself from local taxation for

other purposes than schools, and can devote the

proceeds, when received, to the support of paupers,

or the maintenance of roads or the running ex-

penses of the town, thereby making the unorganized

townships contribute towards these local charges.

This is a groundless fear. The very terms of the act

prohibit it. Section 5 provides that all moneys

provided by towns or apportioned by the state for

the support of common schools, shall be expended

for the maintenance of common schools, estab-

lished and controlled by the towns by which said

moneys are provided or to which said moneys are

apportioned. It is not for the court to say that this

express and mandatory clause will be deliberately

nullified or evaded by the towns. This money israised for a particular purpose, collected by the

state for that purpose, paid *678 over to the towns

for that purpose with a specific injunction that it

shall be used for that and nothing else. Who has the

right to say that that injunction will be violated?

4. But the constitutionality of this act is as-

sailed on another ground, and that is that section 6

permits sums received from the state under this dis-

tribution to be deemed to be raised by the muni-

cipalities within the meaning of R. S. c. 15, 13, as

amended, thereby relieving them pro tanto fromraising by municipal taxation for school purposes

the not less than 80 cents for each inhabitant re-

quired by R. S. c. 15, 13, as amended by Public

Laws of 1909, c. 128.

In this respect this common school fund act of

1909 differs from the school mill act of 1872. The

act of 1872 does not afford such relief because the

towns are still required to raise their 80 cents per

capita tax, and the amount received by the towns

from the mill fund is additional thereto. But the act

of 1909 permits the amounts apportioned thereun-

der by the state to the several towns to be applied

towards the per capita tax, so that under this act

some towns are wholly and others partially relieved

from such local taxation. This, it is claimed, contra-

venes article 8 of the state Constitution, which

83 A. 673 Page 9

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(Cite as: 109 Me. 169, 83 A. 673)


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reads:

A general diffusion of the advantages of edu-

cation being essential to the preservation of the

rights and liberties of the people, to promote this

important object, the Legislature are authorized and

it shall be their duty to require the several towns to

make suitable provision, at their own expense, for

the support and maintenance of the public schools,

etc.

What is the fair construction of this clause?

What force has it as a part of the organic law of the

state?

It is but the restatement of a fundamental and

familiar principle to say that the sovereign power is

lodged in the people, and that the Constitution,

framed and adopted by the people, divides the

powers of government into three distinct and yet

co-ordinate departments-executive, judicial, and le-

gislative. But it is not always borne in mind that the

Constitution operates differently with respect to

these different branches. The authority of the exec-

utive and judicial departments is a grant. These de-

partments can exercise only the powers enumerated

in and conferred upon them by the Constitution and

such as are necessarily implied therefrom. Thepowers of the Legislature in matters of legislation,

broadly speaking, are absolute, except as restricted

and limited by the Constitution. As to the executive

and judiciary, the Constitution measures the extent

of their authority, as to the Legislature it measures

the limitations upon its authority. Field v. People, 2

Scam. (Ill.) 79-81; Cooley, Const. Lim. (6th Ed.) p.

104, and cases cited.

It has never been questioned, so far as I

know, says Redfield, C. J., in Thorpe v. Railroad

Co., 27 Vt. 140, 62 Am. Dec. 62 5, that the Amer-ican Legislatures have the same unlimited power in

regard to legislation which resides in the British

Parliament, except where they are restrained by

written Constitutions. This must be conceded I

think to be a fundamental principle in the political

organizations of the American states. We cannot

well comprehend how, upon principle, it should be

otherwise. The people must, of course, possess all

legislative power originally. They have committed

this in the most general and unlimited manner to the

several state Legislatures, saving only such restric-

tions as are imposed by the Constitution of the

United States or of the particular state in question.

It follows, therefore, that a legislative act is to

be held constitutional unless a positive restriction

or limitation or prohibition can be found in the

Constitution which renders it invalid. No such lim-

itation or prohibition in regard to the maintenance

of the common schools can be found. The argument

for unconstitutionality on this ground is this: That

article 8, before referred to, makes it the duty of theLegislature to require the several towns to raise a

suitable sum by local taxation for the support of

common schools; that, acting under that provision,

the Legislature from the organization of the state to

the present time has fixed the amount at a per capita

rate, varying at different times between 40 cents

and $1 as we have before seen; that the practical ef-

fect of this act under consideration is to relieve

some towns altogether from such local taxation and

therefore to pro tanto repeal R. S. c. 15, 13, and to

nullify the constitutional provision. The mathemat-

ical result claimed undoubtedly exists. According tothe annual report of the state superintendent of

schools, 14 of the cities, towns, and plantations in

this state in the year ending April 1, 1911, raised

nothing locally under the 80 cents per capita stat-

ute, the amount received from the state being suffi-

cient to meet the amount so required of them, and,

it being deemed to be raised under chapter 15,

13, they avoided the local taxation completely.

From the same report it appears that other towns

profited so largely by the act that the per capita as-

sessment was reduced from 80 cents to a very small

figure, so that of the total amount of $1,184,439.60

required to be raised by all the cities, towns, and

plantations, under R. S. c. 15, 13, $542,802, was

in fact raised by local taxation, and $642,378.69, or

more than one-half, was contributed by the state un-

der chapter 177 of the Laws of 1909. The practical

83 A. 673 Page 10

109 Me. 169, 83 A. 673, 21 Am.Ann.Cas. 28

(Cite as: 109 Me. 169, 83 A. 673)

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effect is undoubtedly as contended, and this result

may well arrest the attention of the Legislature

upon whom rests the responsibility.

*679 But no limitation or prohibition of the

Constitution has been violated. Article 8 is man-

datory not prohibitory. 68 Me. 583. It imposes the

most solemn duties upon the Legislature and for

obvious reasons. No subject was dearer to the

hearts of the framers of our Constitution than that

of education, recognizing as they did that it lies at

the very foundation of good government. It was for

that reason that they inserted this provision in the

organic law of the state. They in terms expressed

the broad and full powers which should be exer-

cised in dealing with this subject and sought to im-press upon the Legislature its high duty to avail it-

self of these powers. Not only could the Legislature

enact laws providing for a general assessment under

the public benefit clause, but in order that the

towns, which were always jealous of their rights,

might assist, the power was lodged with the Legis-

lature to require the towns to make suitable provi-

sion at their own expense. It is an historical fact

that in the early days the towns had frequently neg-

lected to make such provision, and therefore the

framers of the Constitution left no room to doubt

that the Legislature should have the power to re-quire them to do their duty, to the end that the chil-

dren and youth of the state should be properly edu-

cated. But the provision is nothing more than man-

datory. It shall be the duty of the Legislature to re-

quire the towns to make suitable provision. Sup-

pose after the Constitution was adopted the Legis-

lature had failed to pass any such act, what would

be the remedy? None certainly in the court. It might

be deemed a failure of duty but the court could not

correct it. The Legislature is in duty bound to per-

form all duties imposed upon it by the Constitution,

but, if it fails to do so and neglects or refuses to

pass legislation as required by a mandatory consti-

tutional provision, there is no remedy. 8 Cyc.

Const. Law, p. 762. In re State Census, 6 S. D. 540,

62 N. W. 129: The fifteenth section of the Sched-

ule to the Constitution declares that the General

Assembly shall pass all such laws as may be neces-

sary to carry this Constitution into full effect.

There is no way of enforcing this injunction on the

Legislature. Under our system of government there

is no power to compel the legislative department of

government to make laws. Constitutions may re-

strict legislative powers, and declare what laws

shall not be valid; but from the very nature of legis-

lative power its exercise in a particular case must

depend upon the volition of the Legislature. Re-

sponsibility to a constituency, and a sense of public

duty, are the only incentives which can prompt le-

gislative action. St. Jos. Board v. Patten, 62 Mo.

444-448.

The Constitution of Alabama adopted in 1819declared that the General Assembly shall direct,

by law, in what manner and in what courts, suits

may be brought against the state. Article 6, 9. In

accordance with that provision, statutes were en-

acted in 1820 and from time to time amended pre-

scribing the courts and the mode of procedure. In

1865 the Constitution was amended to read, Suits

may be brought against the state in such courts as

may by law be provided. Const. 1867, art. 1, 16.

It was held in Ex parte Alabama, 52 Ala. 231, 23

Am. Rep. 567, that the subsequent repeal of these

statutes was constitutional and abated pendingsuits.

A case on all fours with that at bar is Adams v.

Howe, 14 Mass. 340, 7 Am. Dec. 216. In the Mas-

sachusetts Declaration of Rights it was declared

that the people have a right to invest their Legis-

latures with power to authorize and require, and the

Legislature shall, from time to time authorize and

require the several towns, parishes, precincts and

other bodies corporate and politic religious societ-

ies to make suitable provision at their own expense

for the institution of the public worship of God and

for the support and maintenance of public protest-

ant teachers of piety, religion and morality in all

cases where such provision shall not be made vol-

untarily. Provisions for ministerial and parish

taxes were subsequently made by the Legislature in

83 A. 673 Page 11

109 Me. 169, 83 A. 673, 21 Am.Ann.Cas. 28

(Cite as: 109 Me. 169, 83 A. 673)

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accordance with this mandate of the Constitution.

But in 1811 what was afterwards known as the Re-

ligious Freedom Act was passed, whereby any per-

son was exempted from the payment of a ministeri-

al tax by filing with the proper town officers a cer-

tificate of membership in another society, The con-

stitutionality of this statute was attacked on the

ground that its effect was to pro tanto repeal the

statutes imposing ministerial taxes, and therefore

that it controverted the provision in the Declaration

or Rights above quoted. Chief Justice Parker in de-

livering the opinion of the court answered this con-

tention as follows: That part of the declaration

which enjoins it upon the Legislature to exact the

support of religious institutions and attendance

upon public worship is merely directory. If no lawhad been passed pursuant to it, there could be no

penalty upon the citizen, for not obeying the clear

expression of the public will; nor is there any way

of coercing a Legislature to carry into effect these

important requisitions. So the mode, also, of ex-

ecuting the will of the people, in this particular, is

left entirely to the Legislature; and although laws

may be passed, which have a contrary tendency,

and which, in their consequences, may injure, in-

stead of promoting, the public worship, yet the Le-

gislature is to judge, and even their erroneous con-

struction of the design of the people, as expressed

in the said declaration, must have legal effect, so

far as they are not manifestly repugnant to the prin-

ciples of the Constitution.

The phrasing of article 8 in the Constitution of

Maine seems almost to have been *680 copied from

this clause in the Constitution of the mother state,

and the authority of this decision is the greater be-

cause rendered at a time (1817) not long after the

Constitution of Massachusetts had been adopted. It

may with propriety be deemed the construction

placed upon it by contemporaries. This act of 1811

came again under discussion by the Massachusetts

Court in Holbrook v. Holbrook, 1 Pick. 248, and in

the course of the opinion Judge Wilde says: No

such exemption seems to have been contemplated

by the framers of the Constitution, who manifestly

intended that every one should be held to contribute

according to his ability to the support of public

worship, upon the institution and maintenance of

which the happiness of the people and the good or-

der and preservation of civil government so essen-

tially depend. But, there being no restraining clause

in the Constitution, the Legislature in the plenitude

of their power have in the second section provided

for this exemption; and, as it seems, on the condi-

tion only that the person claiming it shall become a

member of some religious society, and shall pro-

duce a certificate of his membership to be filed

with the town clerk. This religious society may be

composed of Christians, or of Jews, Mohamme-

dans, or Pagans. It is not required to support any

teacher of piety, religion, and morality; and the per-son claiming exemption is not obliged to attend

public worship as the condition of this privilege.

The phraseology of article 8 is in itself signific-

ant. In the first place only a duty is laid upon the

Legislature. The Constitution does not even say that

they shall require, but that they are authorized,

and it is their duty to require the several towns to

provide for the support of common schools.

And, in the second place, the extent of the re-

quirement is left wholly to the discretion of the Le-gislature, because their duty is to require the several

towns to make suitable provisions. Who is to de-

termine what is suitable? Clearly the Legislature it-

self. Suitable is an elastic and varying term, de-

pendent upon the necessities of changing times.

What the Legislature might deem to be suitable,

and therefore necessary under some conditions,

they might deem unnecessary under others. The

amount which the towns ought to raise would de-

pend largely upon the amounts available to them

from other sources, and as these other sources in-

crease the local sources can properly diminish.

Most significant, too, in this connection, is the

fact that the first act passed by the Legislature in

furtherance of the constitutional injunction fixed

the municipal as a sum of money, including the in-

come of any incorporated school fund, not less than

83 A. 673 Page 12

109 Me. 169, 83 A. 673, 21 Am.Ann.Cas. 28

(Cite as: 109 Me. 169, 83 A. 673)

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forty cents for each inhabitant. Statute 1821, c.

117, 1. Under that act, whatever was received

from the income of any incorporated school fund

was in effect deemed to be raised under that stat-

ute, and reduced the amount required to be raised

locally, and, if such income were sufficient in any

town to equal the per capita tax of 40 cents, then

the requirement for local taxation in that town

ceased entirely. In this most important particular

the acts of 1821 and of 1909 are identical.

In the light, therefore, of these decisions, and in

view of the language of the Constitution and of the

first legislative act passed in accordance therewith,

we have no hesitation in saying that, although the

act of 1909 may relieve a few towns (at presentonly fourteen out of a total of about five hundred)

from any local taxation whatever for public

schools, that is a matter which may be considered

by the Legislature in the performance of their duty,

but does not of itself, in the absence of any restrict-

ive constitutional provision, render the act uncon-

stitutional and void.

We have not overlooked a statement in the

Opinion of the Justices, 68 Me. 583, that article 8,

is affirmative and not negative in its character. It

(the Legislature) cannot constitutionally absolve thetowns from making at their own expense suitable

provision for this primary and indispensable found-

ation of all good government. The Legislature are

by proper enactments to require the towns to make

suitable provisions for the public schools, and the

towns are, at their own expense, to comply with

those enactments. Neither can escape from the per-

formance of their several and respective obliga-

tions. The question then before the court was the

power of the Legislature to supplement local taxa-

tion by general taxation for this public purpose, and

the precise question of the force of the constitution-

al mandate was not involved. We do not feel that

the conclusions reached in this decision after ma-

ture deliberation should be modified because of

these expressions in the opinions of the justices

which are in the nature of dicta in an unadjudicated

case.

5. Another result of the application of the com-

mon school fund to the local tax is that all the

towns are not now obliged to raise a uniform

amount per capita, but it varies all the way along

the line, from nothing up in 80 cents. In other

words, the Legislative requirement operates differ-

ently in different towns and the inevitable result is

to create, automatically as it were, a varying and

un-uniform rate in the various cities and towns of

the state.

But the Legislature has this power. Towns are

mere agencies of the state. They are purely

creatures of the Legislature and their powers and

duties are within its control. Hone v. Water Co.,

104 Me. 225, 71 Atl. 769, 21 L. R. A. (N. S.) 1021.

Hence it lies in the power of the Legislature not

merely to pass laws applicable to all towns, but it

may direct*681 its attention to the need of a partic-

ul